Why everyone should read Steve Coll's review in the New Yorker: A point on Mary's side

Sandy Levinson

Anyone interested in the more ominous side of the Obama presidency, where it is reasonable, as Mary Dudziak has recently suggested, to focus more on the contingency of who is President than on the deep structures established by the Constitution, should read Steve Coll's review in the current (May 6) New Yorker of two recent books on the rise of targetted assassinations (and much else) by Mark Marzetti (The Way of the Knife) and Jeremy Scahill (Dirty Wars). The single most depressing line is a (purported) quote of the President made during a Situation Room meeting in which a member of the Joint Chiefs of Staff questioned the rise of a parallel airforce controlled by the CIA: According to Marzetti, Obama said, "The C.I.A. gets what it wants." (One assumes that this was a performative utterance, expressing Obama's own preferences, rather than a merely descriptive statement made by a man lamenting that he did not have the power, as President of the United States, to prevent the CIA getting "what it wants.") Were this a statement of George W. Bush, I presume that many people would be up in arms (so to speak). Coll suggests that the message of the two books, and much contemporary journalism, is that the Obama Administration, far more than its predecessor Bush Administration, has adopted a policy of cold-blooded assassination without any public disclosure, save for the "White Paper," of even the general criteria, let alone the specifics, that have resulted in de-facto capital punishment for an undisclosed, by obviously non-trivial, number of America's enemies. (At one point, the CIA claimed, preposterously, that there was no collateral damage in the drone attacks, that everyone attacked was in fact an enemy, a position similar to that taken in Vietnam during Operation Phoenix.) The Obama Administration's position is ultimately "Trust Us" (and accept the fact that we're leaving a legacy of remarkably unconstrained powers, at least in conventional terms where we look to courts, Congress, or an informed press to supply some constraints).

Coll ends his review with a discussion of the remarkable documentary The Gatekeepers, in which five former directors of the Israeli Shin Bet, certainly no shrinking violets when it comes to conducting wars on terror, all express their reservations about Israeli policy. One hopes that Obama has seen the movie and has genuinely wrestled with its arguments. If he hasn't, then that would even more justify the criticism directed at him by Mary, since, obviously, even I cannot possibly blame the Constitution should that be the case. If he has seen the movie, then I would like him to assess it in his next news conference.

Like Mark Tushnet, I find myself genuinely ambivalent about drone attacks. I suspect that they are often less destructive of human life than conventional warfare. But the Obama Administration simply has not encouraged or, more to the point, participated in the kind of systematic discussion that we need, as an ostensibly free people, before so enthusiastically adopting this new model of warfare. I happened to listen to an NPR segment driving home about the history of the ban on chemical weapons. From a coldly ratioonalist point of view, it is not clear why use of chemical weapons is so much worse than other weapons designed to kill and maim people. But there does appear to be a strong international convention against their use, and we may find ourselves (unwisely, I think) intervening in Syria because that almost mystical "red line" has seemingly been crossed. How, at the end of the day, do we decide what is acceptable and unacceptable as means of killing, maiming, and otherwise destroying the lives of people? Cf. the Boston Marathon event, which certainly killed and maimed using very primitive weaponry indeed.

When in the first term it became clear that President Obama was not going to shut down Guantanamo, I was at a panel at the LA Book Show with Mark Danner and Tom Hayden. Someone asked why Obama was reneging on his promise and, as I recall, they both at about the same instant said, "The military/intelligence complex wouldn't let him." I was shocked but maybe the quote was by Obama of truth to power.

I have no doubt that there is a military/intelligence complex. JFK apparently believed this, which I suspect is one reason that at least some of the assassination conspiracy theories ascribe it to the complex (without, I believe, anything in the way of credible evidence).

The question is whether Obama in fact feels himself trapped or whether in fact he has in effect joined it, as suggested by at least some of the jouralism. According to the Coll review, the Obama Administration in part patterns itself after the Eisenhower administration. It is ironic, then, that Ike's best legacy to the nation, beyond the intersatte highways and his willingness to pull the rug from under Great Britain, France, and Israel by refusing to join them in the ill-conceived Suez Canal venture, was his farewell speech on the "military-industrial complex." Whining about uncompromising Republicans is very different from the kind of structural analysis linked with a notion of of a "military/industrial complex" or my own hobbyhorse of the negative consequences of the Constitution.

"Smart weapons like drones are favored while chemical weapons are banned because the former can be targeted to minimize death to the target while the latter drifts aimlessly with the wind."

I have to agree with Bart here.

"The answer is likely far more prosaic"

I'm sure you don't want to pass up an attempt to psycho-analyze 'Democrat presidents' lusting for power, but joe has already given the true and easy answer here. Obama promised to close Gitmo on the campaign trail, he tried when elected, NIMBY motivated Congress vowed to thwart him, and he, rightly in my opinion, found that wasting political capital on that issue was not worth it. What is gained from the standpoint of a liberal who is concerned about human rights to have the President try harder on something that was still likely to be blocked and could very well have given us a President Romney (who famously said he'd like to expand Gitmo) and Senate Majority leader McConnell?

Mr. W: I'm sure you don't want to pass up an attempt to psycho-analyze 'Democrat presidents' lusting for power...

I didn't limit lusting for power to Democrats. This is a nearly universal malady of the political class.

Obama promised to close Gitmo on the campaign trail, he tried when elected, NIMBY motivated Congress vowed to thwart him, and he, rightly in my opinion, found that wasting political capital on that issue was not worth it.

Obama is CiC and has plenary power over where to detain POWs. Congress has no say in the matter. If he wishes, Obama can lodge the POWs in Congress' offices.

No matter how his fan boys and girls spin it, the reality is that Obama caved and continues to cave on Gitmo.

Mr. W: What is gained from the standpoint of a liberal who is concerned about human rights to have the President try harder on something that was still likely to be blocked and could very well have given us a President Romney (who famously said he'd like to expand Gitmo) and Senate Majority leader McConnell?"

What is gained from the standpoint of a leftist voter if the president you elected to enact your policy refuses to do so out of electoral expediency/cowardice?

What precisely has Obama provided the isolationist left for voting for him? Obama has adopted the Bush war policies, launched a surge in Afghanistan, kept Gitmo open and abandoned charging foreign enemy combatants in Gitmo as civilian criminal defendants.

Two terms of nothing is still nothing. Better to implement policy over one term than to stay for two terms and get nothing done.

Of course, I am one of those crazy Tea Party folks who believes in RINO hunting to maintain party discipline even when it costs an election or two to those wascally Democrats.

BD: "What precisely has Obama provided the isolationist left for voting for him?"

Mr. W: Pretty much out of Iraq (vs. McCain's "100 years") and no war with Iran (cf. McCain's "Bomb, bomb, Iran") for starters...

Bush won the Iraq War and negotiated the withdrawal before Obama took office.

However, I will grant you that Obama will be responsible for Iran getting the bomb.

BD: "Congress has no say in the matter."

Mr. W: Aside from the power of the purse (which they used) and the political say of having Congress oppose you?

Congress may not use the power of the purse to exercise CiC command functions. Congress could theoretically defund Defense and Justice to deny the funds, otherwise Obama could have ignored the limits Congress unconstitutionally enacted, used general operational funding for Defense or Justice and moved the Gitmo detainees to the US.

As I remark in the recess definition comment thread, the Constitution establishes a system of relative legislative supremacy.

Legislature can remove the President, the President can't even block the travel of legislators.

Legislature can enact laws over a Presidential veto. The President can't enact laws the legislature refuses to pass.

President is cut entirely out of the loop on constitutional amendments.

And only the legislature is authorized to declare war, or suspend the writ of Habeus.

Now, the President, heading the branch that actually does stuff, has a lot of real-world power, if he's willing to use it in defiance of the law, to act like a dictator. Potentially he could even refuse to budge if impeached, and sic the military on the other branches if they were willing.

But that's not constitutional power, it's just the capacity to act unconstitutionally. And that's all Bart is describing, though he doesn't characterize it that way: The President has the capacity, but not the authority, to do many things.

Even if I agree with some of the things it's been complained Obama should have done, I'm not going to complain if, in some instances, he refuses to usurp Congressional power, and violate the law. Not the least because, if he were more willing to do that, most of the usurpations would be really nasty from my perspective.

He's incompetent at governing, and not terribly devoted to the rule of law, but thankfully he's not a full blown dictator. Yet. Don't tempt him, Bart.

" ... the Constitution establishes a system of relative legislative supremacy."

and then jumps ahead to the current day without tracing the history since 1789 of the role of the executive, in effect blaming Obama for the steps taken by presidents past in exerting executive power. Brett may prefer to be back in 1789, especially with slavery. Alas, as America has grown economically, politically, militarily and internationally, perhaps somewhat attributable to presidents who in the course of Manifest Destiny exerted executive powers, they have overcome "relative legislative supremacy" (whatever that is). And Brett also ignores the role of the judicial branch, with its judicial review and judicial supremacy over the executive and legislative branches (even thought neither judicial review nor such judicial supremacy are contained in the text of the Constitution).

Perhaps Brett with his historical (hysterical?) skills can provide a comparative of George W. Bush with Obama on the matter of unconstitutional executive power. Boy, those changing demographics are so worrisome to Brett that he may sequester himself with his arsenal in South Carolina.

Brett: "the Constitution establishes a system of relative legislative supremacy."

The Constitution establishes a separation of powers, granting limited plenary powers to each branch, which the other branches either may not exercise or their exercise is subordinate to the plenary branch.

Caesarism is when the President arrogates the power to make or ignore the law (a plenary power of Congress) by decree.

In the military sphere, Article I grants Congress the power to enact laws to discipline the military, to appropriate funds for the military and to initiate an offensive war, but it may not command the military, even in a subordinate role.

Article II grants the President plenary power to command as the CiC.

When Congress unconstitutionally attempts to command the military by say designating where POWs may be detained, it is engaging in a form of legislative Caesarism.

Legislature can remove the President, the President can't even block the travel of legislators.

The actual procedure involved has at best indirectly led to the removal of ONE president, including requiring a supermajority of a body that is likely to have at least some minority of supporters or opponents who think removal not warranted.

Legislature can enact laws over a Presidential veto. The President can't enact laws the legislature refuses to pass.

The President enforces the law. From the beginning, especially since then the legislature was not in session for chunks of time, this provides LOTS of power. ONE person has the power to veto the acts of majorities in two bodies. It is again hard to overturn such a veto, though it has occurred.

President is cut entirely out of the loop on constitutional amendments.

The legislature is cut out of the loop for various presidential duties too, and after the amendments are passed, the President is generally involved in their execution in any number of ways.

And only the legislature is authorized to declare war, or suspend the writ of Habeus.

The President can deal with sudden attacks and at the time this involved lots of independent power to deal with conflicts against Indians and overseas. The President is the commander-in-chief, leads the entire military of the U.S. and again even to the degree the legislature controls such things, in practice, and this was shown as early as the Revolutionary War, the President is going to have broad discretion in practice.

Now, the President, heading the branch that actually does stuff, has a lot of real-world power, if he's willing to use it in defiance of the law, to act like a dictator. Potentially he could even refuse to budge if impeached, and sic the military on the other branches if they were willing.

The President has real world power that is constitutional in lots of way.

But that's not constitutional power, it's just the capacity to act unconstitutionally.

It is constitutional power in lots of ways.

He's incompetent at governing, and not terribly devoted to the rule of law, but thankfully he's not a full blown dictator. Yet.

The first part is wrong & Brett is hypocritical about that since part of the competence involved passage of various laws and doing various things that he opposes and he is as devoted to the rule of law as the median executive (fwiw) at least.

As to the first point, the logical result of providing so much power to one person as compared to the old system was that the person had a lot of power to influence legislators, including who won elections.

The President also nominates members of a third branch and the Senate has a check there, but in practice it was only going to be a limited one. They could just block everyone, but that isn't how things work, and the people knew that at the time.

Likewise, the President nominates, at times w/o need for confirmation, the national bureaucracy, including then important positions like postal officials and port masters. Legislature limits here were just that limited, and in practice the President had great power (I can hear the movie "Lincoln" in my ear now).

Still, not an American Caesar. No Ides of March needed quite yet. No fear of future students needing to read his writings. OTOH, a modern day Seutonious and Tactitus would be appreciated. Good writers.

Our SALADISTA (FKA our yodeler) in response to a challenge for a case cite for one of his statements responds:

"I am relying on the text of the Constitution, a quaint practice I'll admit."

and he asks law profs to cite caselaw.

By the Bybee [expletives deleted], does the text of the Constitution spell out "judicial review"" or that SCOTUS interpretations of the Constitution have supremacy over the Executive and Legislative branches? How quaint.

This is just another example of our SALADISTA tossing something out of his derriere and hoping it sticks. (Could it be he misspelled "exorcise"?)

We do not have an English style common law constitution. We enforce the Constitution as written, not as given down by the legal priesthood.

I realize that you attended law school back with Hammurabi and you are spending your dotage returning to the sandbox to come up with cute names for Brett and I, but Article III was rather clear when it stated: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made..."

I may have started law school in Hammurabi's days but in my final year (1954) SCOTUS came down with it unanimous decision in Brown v. Board of Education. That decision was the spark that led to the civil rights movement and the Civil Rights Acts of the 1960s. I remember well the reactions of bigots and racists to Brown and the challenges to its enforcement. This was long in coming after the Civil War Amendments. But today, no one seems to directly challenge Brown; when the "acceptance" of Brown came about is difficult to determine. But even our SALADISTA (FKA our yodeler) is on record at this Blog in praise of Brown as perhaps the greatest decision of the 20th century.

So I may be in my dotage, but I've still got my "ticket" in "good standing," at the low cost of $20/year in "reward" for being a member of the bar in good standing for over 50 years - and NEVER ADVERTISED for clients.

By the Bybee [expletives deleted], my efforts in the "sandbox" are to clean it up from the messes that our dyslexic duo, Bert and Brat, dump at this Blog. Brett at least has the excuse of not having attended law school for his misstatements of constitutional law. But our SALADISTA professes to be a practicing attorney (specializing in DUI cases for which he advertises) and credits himself with expertise in ConLaw, economics, Roman history, etc. But our SALADISTA is basically a hater of all things Obama, spewing pejoratives hoping they will stick.

As to "judicial review," there have been too many articles to mention that have questioned whether the text of the Constitution provides for it. The same applies even more strongly to "judicial supremacy" over the federal (horizontal) elective branches. Textualism does not always provide definitive answers. Keep in mind what CJ Marshall said about it being a Constitution the Court is construing, not a code. Which brings us back to Hammurabi, my "contemporary," who who enacted a code in Babylon. So I got over Hammurabi and understand what Marshall meant about our Constitution when he and the other Justices upheld the constitutionality of a national bank that was not specified in the text of the Constitution.

Bart, you've made Caesarism simply any branch overstepping its bounds, but in actual history Ceasar was this guy, the executive, who had broad power, especially over the liberty and life of his fellow citizens...That's kind of what you're supporting here.

I'm not sure why how and where detainees are to be kept doesn't fall under "To make rules for the government and regulation of the land and naval forces". It seems like a rule governing the land and naval forces, telling them 'hey, here's where and how you can keep detainees." For example, do you dispute that treatment of detainees held by the land or naval forces is not governed by the UMCJ?

That doesn't seem so plain to me; the Founders knew how to use the word discipline when they wanted (see later in section 8 for that) but here they used "to make rules for the government and regulation" of the armed forces.

I don't think the text establishes the limits of Congress' authority vis a vis the President when it comes to "governing and regulating" what the armed forces may or may not do, though perhaps your Caesarist philosophy inclines you towards a reading that grants the executive very broad and unchecked authority ;) ...

"The Congress shall have Power To ...make Rules for the Government and Regulation of the land and naval Forces...." Article I, Section 8, Clause 14

as follows:

"To regulate is to discipline and this clause simply grant[s] Congress the power to enact the UCMJ military criminal code."

While the power to regulate, in general, may include discipline, such as regulations that apply to attorneys, more than discipline can be involved with regulation. Once again our SALADISTA shoots constitutional blanks from his derriere. Maybe it's time for a Caesarian section of our SALADISTA's brain.

"The Congress shall have Power To ...make Rules for the Government and Regulation of the land and naval Forces...."Article I, Section 8, Clause 14

The original meaning of the term regulate when applied to the military was to discipline. For example, the Second Amendment term "well-regulated" in the dictionaries and writings of the time meant a disciplined unit or a unit which could fire from the line in a coordinated fashion. Most modern dictionaries still state that regulation and discipline are synonymous.

Likewise, the Militia Clause treats the term government and discipline of the militia as synonymous.

Conversely, command is not synonymous with regulation Command is a positive function (you will do Y), while to regulate is a negative function (you will not do X).

Federalist 69 expressly distinguishes the President's power to "command and direct" from Congress' power to regulate the military:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.

Federalist 74 expands upon the meaning of command and why it should be granted to the executive:

THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States." The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.

Our SALADISTA (FKA our yodeler) conflates regulate with command. I can't speak for Mr. W, but I have not suggested that Congress has command powers of the land and naval forces. Here's a definition of "regulate" from one dictionary:

****The Random House College Dictionary (1980) gives four definitions for the word "regulate," which were all in use during the Colonial period and one more definition dating from 1690 (Oxford English Dictionary, 2nd Edition, 1989). They are:

1) To control or direct by a rule, principle, method, etc.

2) To adjust to some standard or requirement as for amount, degree, etc.

3) To adjust so as to ensure accuracy of operation.

4) To put in good order.

[obsolete sense]

b. Of troops: Properly disciplined. Obs. rare-1.

1690 Lond. Gaz. No. 2568/3 We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.

****

And the Second Amendment's "well-regulated" militia is basically obsolete and came about AFTER the adoption of the original Constitution including Article I, Section 8, Clause 14 (which was not amended by the Second or other Amendments).

Textualism may not provide the answer so resort is to "history." Our SALADISTA employs the Federalist citation technique that involved basically two - Hamilton and Madison - at the Constitutional Convention. Perhaps our SALADISTA should refer to the ratifying conventions of the states for the "original meaning originalism" test since textualism does not provide a definitive answer. Yes, to regulate may address discipline (USMCJ) but it can be broader, short of command.

Our SALADISTA (FKA our yodeler) is so impressed (despite my apparent dotage) that he failed to recognize or acknowledge that Random House's 1) through 3) do not mention discipline. (If our SALADIST had a petard, he hoisted himself well.)

Bart, none of Shaq's listed definitions, or the Federalist quote, make this command=prescription/ regulate=proscription distinction upon which so much of your argument seems to rest. Perhaps you imported that in from your own political philosophy? Either way I'm not sure it helps you: if Congress tells the military it can't move POWS here or there, that would be, under your definition, a regulation which they are empowered to issue.

It was you that sought to distinguish the "command" power of the CiC with the"regulate" power of the Congress with this prescription/proscription distinction. I simply took what you said seriously: if Congress' regulate power is that of proscription then why could they not simply proscribe the military fom this or that in regards to detainment of POWs? Now you simply offer the ipse dixit and question begging argument that such a proscription would be 'unconstitutional.' I don't think the 'ongoing' test helps you much either, as long as all of Congress' rules for the military are meant to be applied generally in the future they are 'ongoing' (all rules have to 'start' somewhere).

Bruce Ackerman has an interesting Op-Ed in today's Sunday NYTimes on getting out of Gitmo by sending federal judges there for trials. Apparently Bruce is not aware of our SALADISTA's (FKA our yodeler) view of the unconstitutional Caesarist act of Congress keeping Gitmo open. Even if those incarcerated at Gitmo were released, jailed in US, etc, Gitmo would be available under a perpetual lease as a coaling station. [Nostalgia buffs at this Blog might recall the discussions here of Gitmo lease law.]

Congress may not use the power of the purse to exercise CiC command functions. Congress could theoretically defund Defense and Justice to deny the funds, otherwise Obama could have ignored the limits Congress unconstitutionally enacted, used general operational funding for Defense or Justice and moved the Gitmo detainees to the US.

It was you that sought to distinguish the "command" power of the CiC with the"regulate" power of the Congress with this prescription/proscription distinction. I simply took what you said seriously: if Congress' regulate power is that of proscription then why could they not simply proscribe the military fom this or that in regards to detainment of POWs? Now you simply offer the ipse dixit and question begging argument that such a proscription would be 'unconstitutional.'

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So you meant a negative command is a prescription in the form of a proscription that eliminates ANY alternative? I would think nearly all proscriptions eliminate SOME alternative (there is something you shall not be doing).

A regulation is a general proscription like the UCMJ provision against rape.

Most commands are straight forward prescriptions - al Qaeda prisoners will be detained and tried in Gitmo.

Humans are nothing if not clever and on occasion commands come in the form of proscriptions and have the effect of prescriptions - the military will not detain or try al Qaeda prisoners in any state of the union, which effectively is no different than the command al Qaeda prisoners will be detained and tried in Gitmo. This is not a regulation.

Military personnel are prohibited from moving POWS to prisons in the continental United States.

How are these so different? You use the word 'general regulation.' Aren't both of these general (you can't rape anyone including Sally, Sue and Bill, and you can't move any POWs, including Sally, Sue and Bill)? You talk of alternatives being closed. Surely both of these close down alternatives (the alternative of raping any person in the first, of moving any POW to the states in the second). Both take a general course of action and shut it down as an option.

There are lots of places outside the continental US where POWS could be held beside Gitmo.

and Israel by refusing to join them in the ill-conceived Suez Canal venture, was his farewell speech on the "military-industrial complex." Whining about uncompromising Republicans is very different from the kind of structural analysis linked with a notion of of a "military/industrial complex" or my own hobbyhorse of the negative consequences of the Constitution. buy cheap fifa coinslol boostingfifa 14 ultimate team coins